H-1B Visas: How to Apply and Utilize Visas for Skilled Foreign Labor

For many employers, bringing in skilled foreign laborers is a core strategy for addressing any skills gaps in the domestic workforce. One essential program to this strategy is the H-1B visa program, which allows skilled laborers in "specialty occupations" to live and work in the U.S. for a period of three years, which is subsequently subject to renewal.

According to the U.S. Department of Labor, "the intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States."

If you're looking to bring in foreign workers to shore up any skills gaps in your organization, the H-1B program could be what you're looking for. Here's a primer on the process and what to expect.

What are the rules?

H-1B visas have been in existence since 1991, first authorized by the Immigration Act of 1990. The process of applying for a visa is tightly structured, with certain requirements, cap limits and a randomized lottery-style selection method. Here are the key points of the application process that both employers and prospective visa holders should be aware of.

Restrictions and caps: The H-1B program allows 65,000 non-immigrant workers with at least a bachelor's degree to work in a related field in the U.S. In addition, there are 20,000 visas available for those with a U.S. master's degree or who plan on working for a nonprofit, nongovernmental organization or institution of higher learning.

Salary requirements: Workers on an H-1B visa must receive a minimum annual salary of $60,000.

Labor Condition Application (LCA): Employers submit an LCA to the U.S. Department of Labor, in which employers must certify the visa holder would be compensated in the same manner as a U.S. worker; that other employees working conditions will not be negatively impacted; there is no ongoing strike at the workplace; and the position was advertised for at least 10 days. An LCA also includes a description of the job, pay rate, expected period of employment and the location of the job.

Lottery selection: Visas are awarded based on a lottery. Once an application is approved, it enters a pool to be run through a random computer lottery. The 20,000 reserved visas are run through first, and those who do not obtain one are reshuffled into the larger pool of applicants seeking the remaining 65,000 visas.

The H-1B program's cap limit

Demand for H-1B visas is high. The 85,000 visa cap limit has been exceeded year after year, reaching 236,000 total applications in 2016, according to data from the U.S. Citizenship and Immigration Services (USCIS). A Goldman Sachs analysis found that 65 percent of all H-1B visas in 2015 went to computer-related jobs, with 70 percent of visas awarded to Indian nationals. Chinese nationals followed, collecting 18 percent of the available visas.

The result of maintaining such a low cap, said Dick Burke, CEO at immigration recruitment consultancy EnvoyGlobal, is that some companies are hesitant to engage with the H-1B process for fear of wasting time and resources.

"The last few years, the cap has been blown through by a factor of two or three," Burke told Business News Daily. "A company can't stake something as critical as their hiring and growth plan on something they only have a one in three chance of getting."

Moreover, he added, many international students attending American universities might be inclined to stay, work and pay taxes in the U.S. after finishing school, but such a low cap virtually guarantees that most will not.

While companies that rely on H-1B visas often advocate for a return to the previous cap of 195,000 visas, rather than the current 85,000 cap, the executive branch has moved to tighten policy amidst perceived abuses of the program, Burke said. The attempt to crack down on these instances of abuse could ultimately lead to weakening the visa program altogether, he added.

"We want abuse corrected and addressed," he said, "but let's not lose sight of the biggest points. There's a skills shortage in the U.S., and we have incredibly talented people being educated here; why send them home?"

Adam C. Uzialko

Adam received his Bachelor's degree in Political Science and Journalism & Media Studies at Rutgers University. He worked for a local newspaper and freelanced for several publications after graduating college. He can be reached by email, or follow him on Twitter.